In Roberts, Elisabetta Roberts owned a townhome adjacent to a property purchased and demolished by Lily Development, the opinion said.
After the demolition occurred, Lily Development subdivided the property into three separate and distinct lots and constructed a townhome on each lot.
Roberts asserted that her townhome was seriously damaged as a result of the negligent demolition and construction activities of Lily Development and other related parties, the opinion said.
Specifically, Roberts claimed the demolition and construction activities damaged the shared party wall and that Lily Development did not take the appropriate steps to prevent or fix the damage.
Furthermore, Roberts alleged that Lily Development continuously interfered with her use of her property over the construction period, the opinion said.
Roberts filed a complaint asserting causes of action for negligence, private nuisance and trespass.
At trial, Roberts’ expert testified that during the demolition phase, Lily Development left a depression at the bottom of the party wall that separated Roberts’ home from the previously existing adjoining building structure, causing water to pool and seep into the basement of Roberts’ townhome, the opinion said.
Furthermore, according to Roberts’ expert, Lily Development did not attach the newly constructed townhome to the party wall, leaving the wall unstable as well as a gap that allowed moisture to accumulate, causing the wall to deteriorate.
Roberts’ expert also explained that the party wall would eventually bow, causing structural damage to the townhomes on both sides.
According to Roberts’ expert, completion of repairs would take a couple of months and require opening the wall of the first floor of the neighboring townhome, and possibly the second and third floor walls, which would make the repairs extremely difficult and expensive, as well as disruptive.
Roberts did not present any evidence she contacted her new neighbor requesting permission to conduct the repairs or precisely how expensive the repairs would be to complete, the opinion said.
Roberts attempted to produce a written repair cost estimate, but the trial court excluded it as hearsay, as she did not present the person who prepared the report as a witness.
However, Roberts did testify as to her personal belief of the value of her townhome—between $475,000 and $579,000—assuming all issues plaguing it were properly remediated, the opinion said.
Roberts testified that she did not believe her property with the current condition of the townhome was salable given the condition of the party wall.
According to Roberts, she believed that the value of the land was $172,000, and she guessed that she could potentially sell the property with the townhome for $250,000, the opinion said.
The jury entered a verdict in her favor on negligence and private nuisance, and in Lily Development’s favor on trespass.
The jury awarded Roberts $550,000 for negligence, $2,000 for private nuisance, and $350,000 in punitive damages for a total of $902,000, the opinion said.
In response to Lily Development’s post-trial motions, the trial court granted judgment notwithstanding the verdict on Roberts’ negligence cause of action. In doing so, the trial court reasoned that Roberts failed to establish that the damage to her property was permanent or produce any evidence of the cost to repair the damage.
In granting Lily Development’s motion for judgment notwithstanding the verdict, the trial court concluded that Roberts failed to establish that the damage to her land was permanent because it was unclear whether the new next-door neighbor would allow work to be done on their side of the party wall.
Roberts appealed the trial court’s ruling to the Superior Court, arguing that the evidence presented at trial established that the damage to her townhome was permanent and decreased the value of her property.
Quoting Kirkbride v. Lisbon Contractors, 560 A.2d 809 (Pa. Super. Ct. 1989), the Superior Court in Roberts highlighted that “a permanent injury to real estate is limited to those instances where the damage was caused by a de facto taking or where the injury was unequivocally beyond repair.”
The Superior Court in Roberts noted that the trial court relied upon Slappo v. J’s Development Associates, 791 A.2d 409 (Pa. Super. Ct. 2002) when making its ruling.
According to the Superior Court in Slappo, “if the land is not reparable, the measure of damage is the decline in market value as a result of the harm” and “the plaintiff has a duty to present sufficient evidence from which a jury can compute the proper amount of damages with reasonable certainty”.
However, the Superior Court in Slappo emphasized that, if the repairs are possible, the proper measure of damages is the lesser of the cost of repair or decrease in the market value of the property.
The Superior Court in Roberts distinguished the circumstances in Slappo, noting that in Roberts repairs would be possible but would require extensive—and unlikely—neighbor cooperation, effectively making the harm permanent.
The Superior Court in Roberts expressed dismay that Roberts did not contact the neighboring owner to obtain repair access, noting no case law excuses that burden despite Roberts’ reluctance “not to be neighborly.”
Also frustrating was Roberts’ failure to introduce repair cost estimates. With no estimate, the jury could not compare repair cost with market value decline.
Nevertheless, the Superior Court concluded that the evidence permitted a jury to find Lily Development’s failure to make simple repairs created an improbable repair scenario, supporting a finding of permanent, irreparable damage.
Although Roberts received a favorable outcome, the Superior Court’s opinion highlights that plaintiffs carry the burden of proof in property damage cases.
It is imperative that the plaintiff presents adequate evidence that the property damage is unequivocally beyond repair, even if it requires “unneighborly” actions to secure necessary testimony or access.
— Clementa Amazan, an associate at Nochumson P.C., is the co-author of this article.
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